It has become clear recently that many public and other 'professional' investors are willing to purchase complex financial products. It is debatable in this connection whether these parties are able to oversee the associated risks. Current legislation and regulations do assume that these non-retail clients are professional and expert enough to estimate the risks. Incidents have caused the AFM to suspect, however, that this assumption should be reviewed. There are major differences in the degree of professionalism among 'professional' investors who have purchased these products.
The AFM naturally takes signs of possible discrepancies in professionalism and expertise very seriously. The AFM therefore considers that the problems that have been observed should be further analysed and dealt with. This analysis should also examine several types of complex products and services in the market. The AFM takes its responsibility by also searching for appropriate solutions and good examples of services or products (best practices) that may ultimately have to be realised in a broader context.
FocusThe focus of the exploratory analysis is to obtain insight into the market, the risks or problems encountered, and the desired role of the AFM with regard to this issue. The analysis can be divided into:
- Type provider / service provider;
- Services and products offered;
- Type of client / investor: defining the profile of non-retail clients (including the specific need for these products, the specific financial expertise of the client/investor, and the degree of expertise concerning complex products).
ActivitiesIn order to achieve these objectives, the AFM performs three activities:
This analysis deals with the various segments in the market (housing associations, the care sector, education etc.) and investigates what problems are occurring, if any. The scope of the analysis will be tightened on the basis thereof. The AFM also charts the current statutory framework for supervision.
- Taking action
The AFM takes action in the market where possible and required. This concerns integrity violations and violations of the Financial Supervision Act (Wft).
The AFM collaborates on the formation of European Directive MiFID II to protect professional investors. The findings of the exploratory analysis will contribute to the arguments in the debate at the European level. In addition, consideration can also be given to supplementing or amending existing legislation and regulations that relate to the protection of the parties involved.
Legal ConsiderationsAccording to the Wft, an investor is professional if at least two of the three following criteria are satisfied:
- a balance sheet total of at least €20,000,000
- net sales of at least €40,000,000
- equity of at least €2,000,000
The AFM is committed to promoting fair and transparent financial markets.
As an independent market conduct authority, we contribute to a sustainable financial system and prosperity in the Netherlands.